Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering,

and Falsification (a) Base Offense Level: 6 (b) Specific Offense Characteristics (1) (A) If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environ- ment, increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a pollutant, increase by 4 levels. (2) If the offense resulted in a substantial likelihood of death or serious bodily injury, increase by 11 levels. (3) If the offense resulted in disruption of public utilities or evacuation of a community, or if cleanup required a substantial expenditure, in- crease by 4 levels. (4) If the offense involved a discharge without a permit or in violation of a permit, increase by 4 levels. (5) If a recordkeeping offense reflected an effort to conceal a substantive environmental offense, use the offense level for the substantive of- fense. Commentary Statutory Provisions: 33 U.S.C. §§ 403, 406, 407, 411, 1319(c)(1), (c)(2), 1415(b), 1907, 1908; 42 U.S.C. § 7413(c)(1)–(4). For additional statutory provision(s), see Appendix A (Statutory Index). Application Notes: 1. 2. 3. 4. “Recordkeeping offense” includes both recordkeeping and reporting offenses. The term is to be broadly construed as including failure to report discharges, releases, or emissions where re- quired; the giving of false information; failure to file other required reports or provide necessary information; and failure to prepare, maintain, or provide records as prescribed. If the offense involved mishandling of nuclear material, apply §2M6.2 (Violation of Other Federal Atomic Energy Agency Statutes, Rules, and Regulations) rather than this guideline. The specific offense characteristics in this section assume knowing conduct. In cases involving negligent conduct, a downward departure may be warranted. Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual envi- ronmental contamination. A wide range of conduct, involving the handling of different quantities of materials with widely differing propensities, potentially is covered. Depending upon the harm 312 ║ Guidelines Manual (November 1, 2024) §2Q1.4 resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate. 5. 6. 7. Subsection (b)(2) applies to offenses where the public health is seriously endangered. Depending upon the nature of the risk created and the number of people placed at risk, a departure of up to three levels upward or downward may be warranted. If death or serious bodily injury results, a departure would be called for. See Chapter Five, Part K (Departures). Subsection (b)(3) provides an enhancement where a public disruption, evacuation or cleanup at substantial expense has been required. Depending upon the nature of the contamination in- volved, a departure of up to two levels in either direction could be warranted. Subsection (b)(4) applies where the offense involved violation of a permit, or where there was a failure to obtain a permit when one was required. Depending upon the nature and quantity of the substance involved and the risk associated with the offense, a departure of up to two levels in either direction may be warranted. 8. Where a defendant has previously engaged in similar misconduct established by a civil adjudi- cation or has failed to comply with an administrative order, an upward departure may be war- ranted. See §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy State- ment)). Background: This section parallels §2Q1.2 but applies to offenses involving substances which are not pesticides and are not designated as hazardous or toxic. Historical Note Effective November 1, 1987. Amended effective November 1, 1989 (amendment 205); November 1, 2018 (amendment 813).